Welcome to Libertas Chambers Leading specialists in Business Crime, Professional Discipline & Asset Recovery

Libertas is a dynamic and progressive chambers, offering a range of specialisms across a national presence.

"Always well prepared and a consummate professional, she is fantastic to work with."
Chambers & Partners 2024 - Marie Spenwyn

Libertas Chambers

A Forward-thinking set of chambers with a national presence

Libertas Chambers boasts an impressive array of experienced barristers in several practice areas.  We took advantage of recent challenges to rethink the model of a chambers based on criminal and regulatory law and set up on a virtual basis.

This enabled us to create a national service for solicitors and clients by having high quality conference suites in major cities. In London we retain premises in the heart of the City.

Our members provide a high-quality service with access to modern facilities throughout the country.

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Areas of Practice & Expertise

Our carefully selected and highly skilled collection of experts provide a national and international service to all Libertas clients. Providing you with a first-class advocacy and advisory service across the following areas (and many more).

If you would like to discuss an alternative area of law please contact our clerking team who will provide you with immediate advice and support.

Business Crime

Our barristers have established national and international reputations for their expertise, experience and confidence in Fraud, Financial Services and Business Crime and Compliance – they are consistently ranked as leaders in the field. We advise and represent individuals and entities in relation to financial, regulatory, and fraud investigations in the UK, and overseas. Our clients include financial institutions and corporations, as well as: politicians entrepreneurs company directors and chief executives chartered accountants lawyers IFAs and medical and other professionals We therefore have accumulated experience dealing with the Financial Conduct Authority, Serious Fraud Office, National Crime Agency, HMRC, National Trading Standards, FACT, as well as other investigating and prosecuting bodies. International Business Crime Many of our cases have an international dimension and we are accordingly experienced dealing with overseas authorities including the US Department of Justice, the Securities and Exchange Commission and EU, Indian and Australian authorities. Practitioners specialise in trans-jurisdictional terrorist financing, proscribed wildlife trading, and export control violations. Members of our team have previously worked in the banking and commercial sectors and within their regulatory regimes. Others have had advisory and disciplinary roles regulating the accounting (FRC, ACCA, CIMA) and medical (GMC) sectors.  Some of us prosecute for these agencies as well as defending, and advise on and conduct internal investigations, or act as disclosure counsel. We understand how regulators and prosecution authorities work. Practitioners lecture and advise on corporate responsibility for human rights. We are often involved in an advisory role at the start of regulatory or criminal investigations. Our experience, attention to detail and dedication to our clients assists them in responding appropriately with the object of avoiding prosecution. When proceedings are commenced, we work to ensure that our clients receive the best advice and representation and, most importantly, a fair hearing. Business Crime Conduct Our work covers a wide range of conduct, recently including: Bribery and corruption, including European government officials Cartel Offending Commercial property fraud Corporate compliance with human rights obligations Environmental protection, including carbon credit and land fraud, wildlife trading and international illegal logging EU, National and Devolved Government grant scheme frauds Export Control violations Fraud and cheating in the sports sector (cricket, rugby, horse-racing) Fraudulent trading Insider trading, market manipulation and abuse Insolvency and bankruptcy offending Intellectual property theft Investment (boiler-room) fraud and Ponzi mis-selling Money laundering, restraint, confiscation and asset forfeiture Pension mis-selling and liberation frauds Professional discipline Tax Evasion SPV’s inc. film and insurance schemes MTIC & carousel fraud PAYE, payroll and C.I.S. frauds Duty diversions Terrorist financing Trading Standards prosecutions in clothing, energy switching and ticketing sectors Web-site ghosting and internet advance-fee frauds Whistle-blowing and deferred prosecution agreements We advise and represent well-known corporate clients and individuals in sensitive situations with discretion as well as vigour. Please call our Clerking team on 020 7036 0200 to discuss any particular requirements you may have.

Criminal Defence

Libertas Chambers brings together some of the country’s leading criminal defence specialists. Exceptional juniors and renowned Queens Counsel provide quality representation from the Supreme Court, through the Crown Courts across London and the Circuits and in the Magistrates Court. Members of Libertas Chambers also regularly appear in quasi-criminal jurisdictions where their experience in the criminal courts provides a cutting edge service in regulatory and professional disciplinary proceedings. Chambers accept instructions in both publicly and privately funded work and members provide specialist and strategic advice at all stages of a criminal case, from pre-charge investigation through to trial and appeal. Members of Chambers have appeared in some of the most high-profile criminal cases of recent times, including Operation Elveden (selling stories about Prince William and Prince Harry to The Sun), R v H and C [2004] 2 AC 134 (leading case on disclosure), R v Jogee [2016] UKSC 8 (clarifying an error in the law in accessorial liability) and R v Lewis [2017] EWCA Crim 1734 on the approach to joint principalship. Areas Of Criminal Defence Expertise Our members are regularly instructed in the following key areas of criminal defence practice: Appellate Homicide Corporate manslaughter Terrorism Drug trafficking Serious and organised crime, including corruption and bribery International crime Human trafficking Modern Slavery Fraud Cyber crime Robbery Serious assaults Kidnaping Serious sexual offences Environmental health offences Trading standards prosecutions RSPCA prosecutions Our criminal defence barristers offer expert advice to a wide range of external authorities and regularly provide training and lectures on current topics to other members of the legal profession, experts and those who work within the wider criminal justice system.

Regulatory Law

Our members have substantial experience defending individuals and companies in regulatory law matters before professional tribunals or the First-tier Tribunal (General Regulatory Chamber) and above. What distinguishes us from other regulatory barristers specialising in regulatory work is that clients will benefit from our skills and experience as criminal advocates. WHAT IS REGULATORY LAW? Many professions are regulated by professional standards boards and codes of conduct. These codes of conduct can be subject to frequent change and are becoming more demanding and sophisticated and, in some cases, opaque. If a regulatory agency believes that offences have taken place, they have broad powers of investigation. They can conduct inspections, seize documents, compel suspects to answer questions, conduct interviews under caution, serve statutory notices, and take enforcement action, including prosecution. If you need help, our regulatory law barristers can provide legal support and representation. REGULATORY LAW OUR BARRISTERS SPECIALISE IN Our members specialise in many areas of regulatory law, including: Professional Discipline Regulatory Prosecutions We can assist with regulatory bodies, including: – The Financial Services Authority – The Health and Safety Executive – Food Standards Agency – The Department for Business, Innovation and Skills – Environment Agency – HM Revenue & Customs WHY CHOOSE OUR REGULATORY BARRISTERS? Contentious regulatory law work often requires a robust defence, strategic advice and preparation, and skilful cross-examination of witnesses. The lack of hard-fought trial experience in some regulatory practitioners means that the witnesses may not be put under the degree of sustained pressure in cross-examination that the client is entitled to and expects. We believe that any individual or corporate entity facing a serious regulatory law accusation is entitled to the same robust defence as a defendant in a criminal case. The consequence of a false regulatory accusation can be just as damaging and life-changing as a false accusation of a criminal offence. Professionals can be vulnerable to malicious complaints. The only way to tackle these successfully is to use the skills honed in the criminal courts to uncover false accusations. We understand that these cases often cross over between criminal, civil, regulatory and disciplinary proceedings. We are also very aware of both the commercial and emotional impact these cases can have on clients and have a lot of experience supporting our clients through the challenges. We are also well-versed in working with insurers, unions and defence organisations. The regulatory law team includes trained mediators and members with experience working within the City and in-house with regulators. Contact Our Regulatory Law Barristers If you would like to speak with a member of our team, there are plenty of ways to contact Libertas Chambers. Our clerks will be only too happy to recommend the most appropriate barrister or combination of barristers for each individual case.

Civil Litigation

There can often be a very thin line between conduct which is criminal in nature or which amounts to commercial fraud only. The correct advice and selecting the right remedy can make all the difference. Some cases are best left to be prosecuted in criminal courts, where the offender faces the prospect of penal consequences. In other cases, seeking remedies in a commercial or a civil court may be more expedient for you to recoup your losses. And then, there are cases where you may want to explore both possibilities simultaneously. Types of Civil Litigation Civil litigation can encompass a broad range of disputes that will directly enact a number of legal matters. A civil litigator will therefore tend to specialise in a specific practice area. Some of the most common types of civil litigation include: disputes and laws that encompass landlords and tenants environmental law products liability intellectual-property disputes construction medical malpractice employment and labour issues anti-trust laws real estate worker’s compensation, and education law Our Civil Litigation Barristers At Libertas, we pride ourselves on having barristers who have vast experience in multiple domains. We can advise you on selecting the correct remedy for your situation. We assist you with advice that lets you form an informed view. Our members routinely provide pre-litigation advice that helps you form a comprehensive legal overview of your situation and the possibilities. Contact Libertas Chambers today to discuss representation for any civil litigation matter.

Public Law & Human Rights

Libertas Chambers enjoys a leading reputation at the public law and human rights bar. Our barristers frequently appear in the Administrative Court and Upper Tribunal in judicial review hearings and administrative appeals. We help our clients pursue public law challenges against all public authorities, including government departments, courts and tribunals, coroners, the police, housing authorities, schools and prisons. Judicial Review Judicial Review proceedings enable challenges to decisions made by Courts and Tribunals, by regulators and by bodies whose public functions impact individuals and companies. This jurisdiction is an essential protection of the individual’s rights against administrative irrationality or excess. We have specialist experience seeking Judicial Review in cases flowing from our other practice areas, challenging decisions in criminal and quasi-criminal investigations. Members have acted for claimants seeking to challenge decisions made by the police, the Ministry of Justice, the Home Office, the Crown Prosecution Service, the Criminal Cases Review Commission (CCRC), the Information Commissioner, the Asset Recovery Agency, the Legal Services Commission, the Magistracy, Judges and various Tribunals. These cases have included: challenges to the lawfulness of pre-charge search warrants decisions to prosecute children actions by solicitors resisting Special Procedure search warrants challenges to the legality of the application of the sending procedure by Magistrates Courts preserving the anonymity of young offenders in extreme cases the applicability of the reasonable time requirements in Article 6 to enforcement of Confiscation Proceedings decisions on appellate referral by the CCRC treatment of prisoners and the review of Parole Board decisions. Criminal Trials Within the criminal trial process, our members have expertise at first instance on: domestic appeal and applications in the European Court of Human Rights and the OHCHR challenging a range of human rights violations, as well as the compatibility of primary and secondary legislation with the European Convention for the Protection of Fundamental Human Rights and Freedoms (ECHR) such as the hearsay provisions in CJA 2003, the reverse burden in s.90 Financial Services Act 2012 the Attorney-General’s exercise of the right of nolle prosequi We act nationally and internationally for people whose human rights are in issue in other forums, including actions against the police, extradition, international law, prisoners’ rights, and at Coronial Inquests. Why Choose Our Human Rights Barristers? Libertas Chambers’ members have advised and acted on behalf of individuals, governmental organisations and major NGOs in providing international human rights expertise. Our members provide advice and representation in cases concerning Prison Law, including issues relating to prisoners’ welfare, Parole Board hearings, and the release and recall of prisoners. Coronial Inquests engage the rights of many groups; members have experience representing interested parties, insurers and the families of the deceased. We offer particular expertise where there is a potential engagement of criminal or regulatory proceedings, acting for insurers and their policyholders.

Private Prosecutions

The prosecution of alleged criminals for wrongdoing is generally the domain of the Crown and its specialist agencies. But increasing budgetary constraints on investigating and prosecution agencies mean that many miscreants can avoid being held to account in the Criminal Courts for their actions. Why Private Prosecutions? When State prosecutors decide they cannot or will not prosecute, the law allows private individuals to prosecute allegations of wrongdoing. Initiating a private prosecution puts you in court as the prosecutor, adopting the mantle of the prosecution agency. Who Can Bring A Private Prosecution? A private prosecution can be brought by any individual or company – it is not solely an option for the police, CPS or government agency. In the past, private prosecutions were more common among charitable or public interest bodies. But more recently, section 6(1) has been increasingly used by individuals and commercial entities as an alternative to or alongside civil litigation. Which offences can be privately prosecuted? Subject to certain exceptions, private prosecutions can be brought for a wide range of offences where the CPS have not initiated criminal proceedings, including: Fraud Property disputes Assault Sexual offences Harassment Perverting the course of justice Blackmail Manslaughter/murder Private Prosecution Barristers Private prosecutions are a specialist area of the law. The right to prosecute, and seek punishment of offenders, brings with it the responsibility of ensuring a fair trial and the obligation to conform to all the rules applicable to any prosecuting agency. Those rules are often complex and diffuse. At Libertas Chambers, our barristers are experienced in liaising with potential prosecuting authorities and advising how to assemble the best case for the prosecution, taking the case to court and seeking justice, even where the Crown Prosecution Service or other prosecution agencies cannot or will not act. Importantly, this includes continuing advice on the recovery of compensation and some or all of litigation costs from defendants or Central Funds. We start by helping you assess your evidence, advising you on the right forum in which to litigate and on the merits of your case, then working with the best private prosecution solicitors to put together and finally present your case at trial, ensuring continuity of representation and consistency of approach. Members of chambers can offer advice about the particular issues that arise in private prosecutions, including: the prospects of success, applying for and resisting the issue of a summons, applications to the Director of Public Prosecutions to take over and stop a prosecution, presenting and resisting abuse of process arguments recovery of costs. If you would like to find out more information about private prosecutions, please contact our clerks to arrange an initial consultation to discuss the merits of your case.

International Law

Libertas Chambers can field a range of quality advocates who are able to undertake advisory, consultancy and adversarial work in International Criminal Law including: Genocide Torture Crimes against Humanity War Crimes (including several members who are experienced in military tribunals) Why Choose Our International Law Barristers? Members of Libertas Chambers have significant experience in international criminal law at International Criminal Courts and Tribunals, including appeals in cases concerning genocide, crimes against humanity and joint criminal enterprise in an international context. Members experience extends to issues of universal and extra territorial jurisdiction, transnational human trafficking, statelessness and citizenship stripping. Members of Libertas Chambers are available to advise on issues of complementarity arising in International Criminal Law investigations and the application of domestic criminal law in the context of war crimes, torture and other international crimes, to include where there are overlaps with International Humanitarian Law, Human Rights, Terrorism as an international crime, Extradition and Asset freezing regimes. International Criminal Law Expertise We are particularly proud to have a number of members with expertise in international terrorism law who have acted in the UK and overseas in high profile cases at trial and on appeal. Our members are also experts in extradition law, particularly in the context of multinational financial crime. Members of Libertas Chambers also have recent experience across the Commonwealth and in the Judicial Committee of the Privy Council and have experience in death penalty cases overseas We have members on the lists and the International Criminal Court (ICC) and the Kosovo Specialist Chambers (KSC) in the Hague and who have appeared in the Extraordinary Chambers in the Courts of Cambodia (ECCC)> Members provide teaching and training in a wealth of international criminal law spheres.


Felicity was instructed by the Australian Centre for International Justice and led Daye Gang of the Victorian Bar You can read the JFM press release here justiceformyanmar.org/press-r…

About 5 months ago from LibertasChambers's Twitter via Publer.io

Latest News
Art Not Evidence Campaign Dr Felicity Gerry KC is a member of the Art Not Evidence campaign mentioned in the Times Law section today. The Art Not Evidence mission is to fight for a fairer criminal justice system by advocating for a restriction on the use of creative and artistic expression as evidence in criminal trials. The group is collaborating with musicians, community groups, and human rights organisations to campaign for law reform and promote the decriminalisation of rap music and creative expression more broadly. The hope is to create a more equitable and inclusive society that respects the freedom of artistic expression for all. In broader terms Felicity has explained in our webinar on the use of rap music in criminal trials creates an unfair focus on character and culture rather than any individual contribution to a crime which risks unsafe verdicts.   Read about Art Not Evidence and the open letter to the Secretary of State for Justice here https://artnotevidence.org/our-mission/ Read the Times Law article by Catherine Baksi article here https://www.thetimes.co.uk/article/concern-over-use-of-drill-music-in-court-d229p00ng
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FELICITY GERRY KC JOINS WE LEVEL UP Felicity joined a coalition of lawyers, academics, psychiatrists, and organisations with significant interest in, and long experience working with, perinatal women in the criminal justice system in making a submission to the Sentencing Council consultation led by WE LEVEL UP. Question 17: ‘Do you agree with the proposed new mitigating factor and expanded explanation relating to pregnancy? If not, please provide any alternative suggestions. Answer: NO: The Level Up submission relies on a wealth of authoritative research to demonstrate that the current proposal is insufficient and there should be a new mitigating factor which specifies that pregnancy, maternity, and the postnatal period is relevant to the sentencing of a female defendant convicted of any crime, and that an associated explanation should be included in all sentencing remarks. The submission makes alternative suggestions including additional measures should also be introduced to avoid custody where a pregnant woman’s sentence is over the custody threshold, or she is facing a mandatory minimum sentence. In practical terms, this means: Where a woman is on the cusp of custody, a non-custodial sentence must be considered. Where a woman is over the custody threshold and facing a custodial sentence of up to 2 years, a suspended sentence must be considered based on the significant harm custody or separation causes to pregnant and postnatal women and their dependants. Where a woman is facing a sentence of over two years, or a mandatory minimum sentence, pregnancy, and the postnatal period to constitute an ‘exceptional circumstance’ that makes the imposition of the minimum term a disproportionate sentence and would justify not imposing the statutory minimum sentence. This approach gives due weight to the significant harm caused by custody to the pregnant woman, her unborn child and a baby who may be born in prison. It also prioritises the best interests of the child over separation and fits with the Ministry of Justice Female Offender Strategy which identifies that “custody is particularly damaging for women” and that many female offenders could be more successfully supported in the community, where reoffending outcomes are better. The impact of custody on a woman who is pregnant is very likely to cause significant harm to the physical and mental health of both the mother and the child. Without a full medical and social picture of the pregnant or postnatal woman, there is a significant risk that sentencers will be unwittingly sentencing a mother to a stillbirth, a baby to death or other serious complications, or an infant to developmental trauma. and the sentencer should give reasons for all sentences of pregnant or postnatal women addressing the known research and data. Download the submission by clicking this link Find out more about Level Up here https://www.welevelup.org/
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Dr Felicity Gerry KC in Daily Mirror on campaign to exonerate Christine Keeler Dr Felicity Gerry KC appears in the Daily Mirror on the campaign to exonerate Christine Keeler. The campaign for the posthumous exoneration of Christine Keeler was covered for 3 days in The Mirror. The campaign is being brought by her son Seymour Platt who was left the task of telling her real story in her will. Dr Gerry KC explains: “At the height of the “Profumo Scandal” Christine was the victim of a violent assault by a man called Lucky Gordon. He was prosecuted, but sacked his lawyers and represented himself. In cross examination of her, he admitted assaulting her. She told the police she had not mentioned two other witnesses because they asked her not to. on the suggestion that she had lied about about who was present, Gordon’s conviction was quashed by the Court of Appeal and she was prosecuted for perjury. She pleaded guilty and was sent to prison. “She was under terrible pressure. For example, news reports account members of the public throwing eggs at her when she attended the Old Bailey in Stephen Ward’s trial where she was also infamously accused of being a sex worker. Ward took his life before verdicts on whether it could be proved he was living on her “immoral” earnings. Most people now accept this was a travesty of justice. It certainly framed her appallingly for the rest of her life, as Seymour Platt has explained in the Mirror. “The law on the charges Christine faced (despite being a victim) only applies if there is a “material lie”. That Christine did not state that two other men were present when she was violently assaulted was totally irrelevant, especially as a proper investigation would have revealed they saw the attack and supported her account and because her attacker admitted in court he assaulted her. “The Criminal Cases Review Commission is now quite properly investigating the case. The implications of the comments her barrister Jeremy Hutchinson QC made at the time make it obvious she pleaded guilty when she was not, and she was appallingly shamed, unlike others whose reputation has been restored. “There is a real risk that she was wrongly convicted by her own plea on an incorrect application of law on credit / lies. Sending her to prison was dreadful and she rightly deserves a posthumous exoneration. It would also go a long way to reframing a case that is the epitome of slut shaming and has had lasting implications for all women being improperly framed as liars, fitting with modern CPS guidance on violence against women and girls” You can read more here https://www.mirror.co.uk/news/uk-news/profumo-sex-scandal-icon-christine-31477770
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Latest Insights
Chambers Article: Rule 25.9(2)(c): Defence Statements and ‘openings’ Traditionally in England and Wales the defence may give an opening address at the start of the defence case, but only where evidence is to be called other than from the accused person. In many cases this means that the issues are not identified clearly until a late stage and in long cases there can be an advantage to the prosecution to dominate the trial issues. In a recent webinar we discussed this topic of delivery of defence openings / summary of issues and how defence statements can be framed to support a defence opening. This article is a summary of the key provisions discussed. Click below to read in full. Download Article now To stay up to date with insight articles, webinars and chamber news why not subscribe to Libertas Lens (our periodic newsletter) – Click here to register
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Chambers Article: The ‘Fediverse’ vs P2P: The next generation of digital forensics The courts of England and Wales may still be dealing with the many EncroChat-related prosecutions, but technology has already moved on. While many are focused on AI and its potential for misuse, what some overlook are the networks on which these platforms operate. You may never have heard of the ‘fediverse’ but, if you practise criminal law, you should understand the basics, says Benjamin Knight. Click below to read in full. Download Article now To stay up to date with insight articles, webinars and chamber news why not subscribe to Libertas Lens (our periodic newsletter) – Click here to register
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Unreasonable delay… Sufficient to warrant a permanent stay of criminal proceedings? Article originally posted 9th June 2023. Updated: 18th August 2023 In England and Wales, the answer to this question is no. However, in Canada, a more robust approach is taken to procedural delay in certain circumstances. This article discusses delay to the criminal trial process, once it has begun. This is to be distinguished from the timely prosecution of certain categories of offence which come to light or are reported many years after they were committed, as occurred e.g., in Sawoniuk who was tried and convicted some 50 odd years after his war crimes. England and Wales Article 6(1) of the European Convention on Human Rights provides that every person charged with a criminal offence has the right to a fair trial by an independent and impartial tribunal within a reasonable time. The reasonable time right is not unqualified, but it has been held to be both independent of and separate to the co-existing rights in article 6 to a fair trial by an independent and impartial tribunal. It has been given effect in the domestic laws of England and Wales by the Human Rights Act 1998 which requires public authorities to act in a convention compliant manner. Therefore, as far as an individual charged with a criminal offence is concerned, and in very broad terms, this means that their convention rights not only trump the common law where there may be conflict between the two, but that prosecuting authorities and criminal courts must act in a manner which is compatible with their convention rights. In most cases, time starts to run from the moment a person is charged or summonsed and it continues until the conclusion of any appeals, including appeals against confiscation orders. In order to establish a breach of the reasonable time requirement, an accused is not required to demonstrate prejudice; once a breach has been established, however, the concept of prejudice looms large when the criminal court comes to consider the appropriate remedy for the breach. Typically, this is because an accused whose reasonable time right has been breached, will apply for a stay of the proceedings as an abuse of the process of the court, thereby bringing into play ordinary and well-settled abuse of process principles. The established cases in England and Wales which deal with the appropriate remedy for a breach of the reasonable time requirement are: Attorney General’s Reference (No.1 of 1990) [1992] 95 Cr. App. R. 296, Attorney General’s Reference (No.2 of 2001) [2004] 2 A.C. 72, R v S. (S.P.) [2006] 2 Cr. App. R. 23 and R v F. (S.) [2011] 2 Cr. App. R. 28. Taken together, the following principles emerge: (i) a permanent stay is the exception rather than the rule; (ii) there should be no stay in the absence of serious prejudice to the defendant being tried; (iii) the court is under a duty to regulate and control its proceedings to ensure that the defendant receives a fair trial, notwithstanding the delay. (iv) a permanent stay of proceedings should only ever be ordered in circumstances where the defendant cannot receive a fair trial or where, for a compelling reason, it is no longer fair for the defendant to be tried; (v) in the latter case, a permanent stay will never be warranted in circumstances where a lesser remedy to mark the breach will suffice. Canada Section 11(b) of the Canadian Charter of Rights and Freedoms, contained in Part 1 of the Constitution Act 1982, provides that, “any person charged with an offence has the right to be tried within a reasonable time.” Section 11(d) provides for the co-existing rights to a fair trial by an independent and impartial tribunal. Prior to 2016 and the Supreme Court of Canada’s decision in R v Jordan, [2016] SCC 27 (CanLii), violations of the section 11(b) charter right were determined according to the “the Morin framework”, following the Court’s earlier decision in R v Morin, [1992] CanLii 89 (SCC). The Morin Framework Morin was a straightforward drink-driving case from the state of Ontario which enjoyed a delay of 14.5 months between the defendant being charged and her trial taking place. Her counsel had requested the earliest possible trial date. On the day of trial, counsel applied to stay the proceedings alleging a violation of the defendant’s section 11(b) constitutional right to be tried within a reasonable time. This application was dismissed and the defendant was convicted. Her case progressed all the way up the Supreme Court of Canada (“SCC”). The Court held that in determining an alleged section 11(b) violation, it was not apposite to apply a mechanistic or mathematical formula. Instead, a judge was required to balance the protection afforded to the individual by section 11(b) against other factors which inevitably lead to delay. These other factors were: the length of the delay; any waiver of time periods by the defence; the reasons for the delay, including (a) the inherent time requirements of the case, (b) the actions of the accused, (c) the actions of the Crown, (d) limitations on institutional resources, and (e) other reasons for delay; and prejudice to the accused. The majority stated that unreasonable delay should only be investigated if the period was long enough to raise an issue as to its reasonableness. Short periods of delay would only be capable of raising an issue if a defendant could demonstrate prejudice. With respect to limitations on institutional resources in particular, the Court suggested guidelines of 8 to 10 months for provincial courts to determine matters and 6 to 8 months, post-committal, for trial in the higher courts. It made clear, however, that these were guidelines only, not intended to operate as a limitation period and that they were to be weighed in the scales with the other factors which they had identified. The Court recognised that the practical application of these guidelines would be influenced by the extent to which an accused might suffer prejudice. The Court noted that the guidelines would require adjustment by regional courts to reflect local conditions and that they would also need to be adjusted from time to time to reflect changing circumstances. The Court observed that prejudice might be inferred from the length of the delay: the longer the delay, the more likely an inference of prejudice. However, if prejudice could not be inferred by the court or proved by an accused, any suggestion of an alleged violation would be seriously undermined. The protection afforded by section 11(b) was to ensure that trials were brought on swiftly and to minimise prejudice, not to avoid trials on their merits from ever taking place. A defendant’s attitude to securing a timely trial was an important consideration to be weighed in the scales. A balance had to be struck between the public interest, which demands that persons charged with offences should be brought to trial, and the accused’s interest in the prompt and efficient determination of criminal proceedings. Prior to the SCC’s decision in Morin, an extreme example of a section 11(b) violation which resulted in a stay is to be found in R v Rahey [1987] CanLii 52 (SCC). The provincial court judge presiding over the matter caused an 11-month delay after the prosecution had closed its case and the defendant had asked for a directed verdict of acquittal. Initially, the accused did not object to the delay. After 9 months, he wrote to the Crown requesting that it should press the judge for a decision. He then alleged that his constitutional rights were being violated and requested a withdrawal of the charges. These requests were refused. Instead, the Crown made an application to the superior court for mandamus to compel the provincial judge to deliver a ruling. The day before the provincial judge was due to give the ruling, the defendant made an application to the superior court for an order dismissing the charges on the basis that his section 11(b) constitutional right had been violated by the provincial court. The superior court judge granted the defendant’s application and held that the trial judge’s delay had caused him serious prejudice by frustrating his ability to (i) conduct his defence, and (ii) carry on business while under a financial restraint order. The superior court judge concluded that the only appropriate remedy for the breach was a dismissal of the charges. The Court of Appeal reversed this decision and directed that the trial in the provincial court should continue. It found that the evidence of prejudice was “insubstantial and entirely speculative.” The SCC allowed the accused’s appeal and ordered a stay of the provincial court proceedings. It is of some note that 6 of the 9 SCC Justices empaneled to hear this appeal were of the view that a stay of proceedings was the minimum remedy because the provincial court had lost its jurisdiction to continue trying the accused when it became the author of the section 11(b) violation. R v Jordan [2016] SCC 27 – The New Framework Jordan was charged in December 2008 with offences relating to the supply of controlled drugs. His trial ended in February 2013. He made an application under section 11(b) for a stay of the proceedings on account of the delay. The trial judge applied the Morin framework, dismissed the application and the defendant was convicted. He appealed to the Court of Appeal which dismissed his appeal. The SCC allowed his appeal, set aside his conviction, and ordered a permanent stay of proceedings. The SCC introduced a new concept of presumptive ceilings beyond which any delay is presumed to be unreasonable unless there are exceptional circumstances justifying it. Once a presumptive ceiling has been exceeded, a permanent stay will follow unless the crown can justify the delay. There is no longer a need for an accused to demonstrate prejudice. Unlike the position in England and Wales, accused persons do not have to invoke abuse of process principles and prove on balance of probabilities that they cannot have a fair trial or that it is no longer fair for them to tried. Unless there are exceptional circumstances to justify it, exceeding the presumptive ceiling, in and of itself, leads to a permanent stay and the burden is on the Crown to justify any delay under the exceptional circumstances exception. The majority of the SCC opted for a new framework stating that the Morin framework, “…had given rise to both doctrinal and practical problems, contributing to a culture of delay and complacency towards it. Doctrinally, the Morin framework is too unpredictable, too confusing, and too complex. It has itself become a burden on already over‑burdened trial courts. From a practical perspective, the Morin framework’s after‑the‑fact rationalization of delay does not encourage participants in the justice system to take preventative measures to address inefficient practices and resourcing problems.” “A new framework is therefore required for applying s. 11(b)… At the heart of this new framework is a presumptive ceiling beyond which delay — from the charge to the actual or anticipated end of trial — is presumed to be unreasonable unless exceptional circumstances justify it. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry).” The new framework is applied as follows: Defence delay (caused or waived) does not count towards the presumptive ceiling. Once the applicable presumptive ceiling has been exceeded, the Crown bears the burden of rebutting the presumption of unreasonableness on the basis of exceptional circumstances. If the Crown cannot do this, a stay will follow. “Exceptional circumstances” are circumstances which lie outside the Crown’s control. They must be reasonably unforeseen or reasonably unavoidable, and not reasonably capable of remedy. Whether circumstances are exceptional will depend on the trial judge’s good sense and experience. In general, exceptional circumstances will fall under two categories: discrete events and particularly complex cases. If the exceptional circumstance relates to a discrete event (such as an illness or unexpected event at trial), the delay reasonably attributable to that event is subtracted from the total delay. If the exceptional circumstance arises from case complexity, the delay is reasonable and no further analysis is required. An exceptional circumstance is the only basis upon which the Crown can justify a delay that exceeds the presumptive ceiling. The seriousness or gravity of the offence cannot be relied on, nor can chronic institutional delay. The absence of prejudice to an accused person cannot be used to justify delays after the presumptive ceiling has been breached. Only circumstances that are genuinely outside the Crown’s control and ability to remedy may excuse prolonged delay. Below the presumptive ceiling, the burden is on the defence to show that the delay is unreasonable. To do so, the defence must establish that: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the s. 11(b) application must fail. Stays beneath the presumptive ceiling should only be granted in clear cases. Turning to Jordan’s appeal, the total delay from the date on which he was charged to the end of his trial was 49.5 months. From this, the Court deducted a 4-month adjournment period for a delay which had been caused by the defendant changing his counsel shortly before his trial was due to begin. A further 6 weeks was deducted on account of a further delay occasioned when the defendant’s counsel was unavailable. This left a delay of 44 months which the Court found “vastly exceeded” the 30-month presumptive ceiling for superior court cases under its new framework. While there were some complexities to the defendant’s case, they were not of a kind that could reasonably justify this level of delay. Accordingly, as the Crown was unable to demonstrate that the delay was reasonable, the only remedy for the breach was a stay of the proceedings. Discussion On any view, the Canadian presumptive ceilings are very generous for most criminal cases being tried in the higher and lower courts. They amount to this: superior court cases must conclude within 2.5 years from the date on which a suspect is charged and provincial court cases must finish within 18 months. These are significant time periods for the vast majority of criminal cases. They were set with a view to tackling chronic delays and a culture of complacency to delay which had become embedded in some parts of the Canadian system. The SCC spoke of the need for everyone involved in the Canadian criminal justice system to address inefficient working practices and adequacy of resource problems. In considering the potential utility, therefore, of the Canadian model to practice in England and Wales, one probably needs to consider, first, whether there are, in fact, any Crown Court cases presently taking longer than 2.5 years from charge to conclusion? And in Magistrates and Youth Courts, whether there are any cases that are not being disposed of within 18 months? There may not be that many. Judges and list officers in England and Wales have consistently shown a determination to have trials warned or fixed in the court calendar as soon as possible. Most trials, including those requiring High Court or specialist ticketed judges, used to be warned or fixed for trial within no more than 6 to 9 months of the PCMH; many within less time than this depending on the court centre. Cases were not infrequently moved between different court centres, both on and off circuit, to ensure that they could be tried as quickly as possible, regardless of counsel’s convenience and often to the chagrin of busy counsel. So, in a sense, the Canadian model may not be a good fit to the system in England and Wales. However, should the criminal justice system in England and Wales ever find itself overwhelmed or close to breaking point, to the extent that criminal cases are no longer capable of being listed and disposed of within the reasonable time frames that judges and list officers applied historically and did their best to adhere to, a brave counsel somewhere might wish to take a stab at presenting the Canadian model, with the ceilings suitably adjusted to reflect our own historic standards of efficiency and expedition. Who knows, it might just find favour with some Judges in some cases without the need to demonstrate prejudice and unfairness. In relation to substantial complex fraud cases which in some instances can conceivably take longer than 2.5 years to reach a conclusion, under the Canadian model the complexity of these cases is deemed capable of amounting to an exceptional circumstance justifying the reasonableness of the delay such that no further inquiry is required. Having said this, it is probably fair to observe that there must come a point at which even complex cases should not be allowed to drift on if they cannot be made ready for trial and accommodated by a crown court centre within a reasonable time. Rahey and Morin were considered by the House of Lords in Attorney General’s Reference (No.2 of 2001) [2004] 2 A.C. 72, as indeed was the New Zealand Court of Appeal case, Martin v Tauranga District Court [1995] 2 NZLR 419, in which an approach similar to that in Canada was taken. Lord Bingham described the argument in favour of a permanent stay as a powerful one and opined that it was not at all surprising that such a powerful argument had been accepted by highly respected Courts around the world. However, in addition to the compelling public interest in the determination of criminal charges, he provided four reasons why it should not be accepted in England and Wales: the right which a defendant has is to a hearing which should have certain characteristics; he said it would be anomalous if a breach of the reasonable time requirement had more far-reaching consequences than a breach of a defendant’s other section 6(1) rights e.g., the right to a fair trial. Lord Bingham cited the example of a defendant being convicted after an unfair trial, the Court of Appeal quashing the conviction because of the unfairness but nevertheless ordering a re-trial if a fair trial is still possible. automatic termination of proceedings cannot sensibly be applied in civil proceedings; in practice, automatic termination of proceedings has been shown to weaken the requirement. Citing the Judicial Committee of the Privy Council in the Scottish case of Dyer v Watson [2004] 1 A.C. 379, Lord Bingham pointed out that the convention is directed to breaches of basic human rights, not to departures from an ideal, and that the threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed. Lord Bingham expressed a concern that should a breach result in an automatic stay, judges might set the threshold at an unacceptably high level because the idea of setting free dangerous criminals or those who are guilty of serious crime on account of delay has always been repugnant; finally, a close analysis of the ECHR jurisprudence did not support the contention that a breach of the reasonable time requirement should lead to an automatic stay of the proceedings. Adrian Kayne 18th August 2023 Download Article now To stay up to date with insight articles, webinars and chamber news why not subscribe to Libertas Lens (our periodic newsletter) – Click here to register
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